The opinion of the court was delivered by: Judge Rambo
Maurice Cromratie ("Cromratie"), an inmate currently incarcerated at the United States Penitentiary at Allenwood ("USP-Allenwood"), in White Deer, Pennsylvania,*fn1 has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the Bureau of Prisons' ("BOP") failure to transfer him to either a halfway house or residential re-entry center ("RRC"). He seeks to compel the BOP to provide him with placement in an RRC for "at least 6 months not to exceed 10%" of his federal sentence. (Doc. 1 at 2.) For the reasons that follow, the petition will be denied for failure to exhaust administrative remedies.
On July 21, 2003, Cromratie was sentenced in the United States District Court for the Eastern District of North Carolina to 87 months imprisonment for charges of felon in possession of an unregistered firearm. See United States v. Cromratie, 7:03-CR-00012 (E.D.N.C. 2003).*fn2 Thereafter, Cromratie was designated to USPAllenwood.
The record*fn3 reflects that Cromratie has filed twenty-seven (27) requests for administrative remedy from USP-Allenwood on various topics and to various levels, including the Northeast Regional Office. (Doc. 6-2 at 18-32.) These remedies address the following issues: complaints about clothing issued, religious diet, job complaints (from laundry department), commissary services, financial responsibility, consultant referrals/recommendations, request for surgery, restoration of good time credits, other sentence computation, UNICOR work assignment, good conduct time, inappropriate pat searches, request for restitution for loss of commissary, appeal of a disciplinary action, discrimination, and jail credit. (Id.) None of these requests for administrative remedy pertain to issues relating to the claims presented in the instant petition.
In this petition, Cromratie alleges that while at USP-Allenwood he received several incident reports, but all have been reversed in his favor. (Doc. 7 at 4.) He contends, however, that it is these incident reports which led to the BOP's refusal to alter his classification designation, a designation which precluded him from transfer to an RRC. (Id.) Further, he claims that by making such a refusal the BOP improperly applied to his sentence BOP Program Statement 7310.04 ("Community Corrections Center (CCC) Utilization and Transfer Procedures"), because it was not in effect at the time he began serving his federal sentence in July 2003. (Doc. 1 at 3.) He contends that BOP Program Statement 7310.04 "was not placed on the books until Year 2006," and therefore the application of the BOP Program Statement to his sentence violates the ex post facto clause of the United States Constitution.*fn4 (Id. at 1.) See U.S. Const. art. 1, § 9, cl. 3 ("No . . . ex post facto Law shall be passed.")
Finally, Cromratie contends that the BOP breached its statutory obligations under 18 U.S.C. §§ 3621(b)*fn5 and 3624(c)*fn6 by failing to alter his classification designation.
The instant petition was filed on December 21, 2007. (Doc. 1.) On January 14, 2008, the court issued an order directing the respondent to show cause why habeas relief should not be granted, on or before February 4, 2008. (Doc. 5.) In his response to the instant petition, Respondent contends that Cromratie's habeas petition should be denied for failure to exhaust administrative remedies. Cromratie has replied to the response. (Doc. 7.) Thus, the petition is ripe for disposition.
Despite the absence of a statutory exhaustion requirement attached to § 2241, courts have consistently required a petitioner to exhaust administrative remedies prior to bringing a habeas claim under § 2241. Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000); Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996). Exhaustion is required "for three reasons: (1) allowing the appropriate agency to develop a factual record and apply its expertise facilitates judicial review; (2) permitting agencies to grant the relief requested conserves judicial resources; and (3) providing agencies the opportunity to correct their own errors fosters administrative autonomy." Moscato, 98 F.3d at 761-62 (citing Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981)).
In order for a federal prisoner to exhaust his administrative remedies, he must comply with 28 C.F.R. § 542. See 28 C.F.R. § 542.10, et seq.; Lindsay v. Williamson, No. 1:CV-07-0808, 2007 WL 2155544, at *2 (M.D. Pa. July 26, 2007). An inmate first must informally present his complaint to staff, and staff shall attempt to informally resolve any issue before an inmate files a request for administrative relief.
28 C.F.R. § 542.13(a). If unsuccessful at informal resolution, the inmate may raise his complaint with the warden of the institution where he is confined. Id. at § 542.14(a). If dissatisfied with the response, he may then appeal an adverse decision to the Regional Office and the Central Office of the BOP. Id. at §§ 542.15(a) and 542.18. No administrative appeal is considered finally exhausted until a decision is reached on the merits by the BOP's Central Office.
A district court may use its inherent power to dismiss, sua sponte, a complaint which conceded that the prisoner failed to exhaust his administrative remedies and which facially violates a bar to suit. Ray v. Kertes, 285 F.3d 287, 293 n.5 (3d Cir. 2002). See also Sulaski v. Lindsay, No. 1:CV-06-2482, 2007 WL 1031457, at *1 (M.D. Pa. Mar. 29, 2007) (relying on Ray for sua sponte dismissal of an unexhausted § 2241 petition). However, exhaustion may be excused upon an affirmative showing of futility. See Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998).
As set forth above, the record reflects that since his incarceration at USPAllenwood, Cromratie has filed 27 requests for administrative remedy on a variety of topics. See supra pp. 2-3. Respondent contends that Cromratie has failed to exhaust his administrative remedies with respect to the instant claims. Respondent also argues that "Cromratie fails to show, or even claim, that he is not required to exhaust administrative remedies on the basis of futility." (Doc. 6 at 7.) In his traverse, Cromratie counters that he "has attempted to resolve 'informally' via verbal communication with [Case Manager] Kelly McMahan & others . . . ." (Doc. 7 at 4.) There is nothing in the record, however, indicating that Cromratie subsequently raised his claims with any other entity, namely USP-Allenwood's warden or the BOP's Regional and Central Offices. As such, the court agrees with Respondent that Cromratie has failed to present any basis for excusing exhaustion in this ...